Gateways to the Professions Advising medical schools: encouraging disabled students Supplement: review of disability discrimination legislation This legal review was conducted by the Open University project team as part of the development of the advisory guidance. The legal review was completed by February 2008 and does not reflect subsequent changes in the legal position. The review was not a statement of the law from the GMC nor was it intended as such and it should not be relied upon as such. The views expressed in the legal review do not necessarily reflect the views or policy of the GMC, either in February 2008 or since then, and should not be relied upon as such. 1 2 TABLE OF CONTENTS Introduction 4 Executive summary 5 Section 1. Overview of the main provisions of the Disability Discrimination Act applicable to medical education and training 9 1. The definition of ‘disability’ 9 2. Developments in higher education since the DDA 1995 13 3. Summary of disability discrimination law in higher education 16 4. Main thrust of current disability discrimination legislation 17 4.1 Potter case 18 4.2 Legal proceedings: burden of proof; damages 18 4.3 The Codes of Practice 19 4.4 The impact of disability legislation on providers of medical education and training 20 4.5 Legal position of medical students at undergraduate level 20 4.6 Legal position of medical trainees at postgraduate level 21 4.7 Disclosure 21 5. The Disability Equality Duty (DED) 22 5.1 General duty 22 5.2 Specific duty: Disability Equality Scheme (DES) in Great Britain 23 5.3 Disability action plans in Northern Ireland 24 5.4 Employment provisions of Part 2 of the DDA 24 5.5 Reasonable adjustments 25 5.6 Work placements 25 Section 2. Academic and competence standards and qualifications bodies 27 6. Disability discrimination legislation about standards 27 6.1 The need to maintain academic or other prescribed standards 27 7. Qualifications bodies 28 7.1 Definition of qualifications bodies 28 7.2 What is a competence standard? 30 8. Law on medical education and training 31 8.1 Core Education Outcomes 31 3 8.2 MSC guiding principles for admission 2006 32 8.3 Information for potential students about fitness to practise 34 8.4 Medical students: Professional behaviour and fitness to practise 34 8.5 Link between graduation and provisional registration 34 9. GMC Fitness to Practise Rules 2004 35 Section 3. DRC fitness standards formal investigation: legal review 36 10. Legislative framework for the medical profession 37 11. Fitness to practise procedures 37 11.1 Competence standards 38 11.2 Disclosure of health conditions and impairments 38 11.3 DED: Private providers of health and care services 39 11.4 DRC final report 39 Section 4. International comparisons 41 12. United Nations convention on the rights of persons with disabilities 41 13. Europe 41 13.1 European Union 41 13.2 Freedom of movement 42 13.3 Equal treatment 42 13.4 Case-law 42 13.5 European convention on human rights 43 13.6 Disability rights 43 14. Common law jurisdictions outside Europe 44 14.1 Canada 44 14.2 United States 46 14.3 Australia 48 14.4 New Zealand 49 Sources 52 4 INTRODUCTION The project team was delighted to be chosen to prepare guidance on attracting and retaining disabled people in the medical profession. We considered a review of the relevant legislation as a pre-requisite for guidance preparation. This paper summarises the results of that review. Section 1 is an overview of the Disability Discrimination Acts (DDAs) 1995 and 2005, with references to the legislation for Scotland and Northern Ireland, and of the legislation applicable to medical education and training. We do not cover those aspects of disability discrimination legislation not directly relevant to medical education and training, such as the law on services to the public or the recent amendments on transport, for example. Section 2 focuses on the GMC’s own role as a Qualifying Body under Part 2 of the DDA 1995. Section 3 draws on the recent Disability Rights Commission (DRC) formal investigation into health and fitness standards that can deter disabled people entering professions. The Investigation concerned nursing, teaching and social work, but refers to medicine. Section 4 analyses some international legal sources, focusing on the position on disability discrimination and on medical education, in international law, in Europe, and in four comparable countries world-wide. There is an executive summary on the next page. The legal sources are listed in the Appendix. Please note that our draft Guidance is structured to match the student’s ‘journey’ through medical education and training (for ease of use in practice). This paper, with its legal focus, follows the chronology and structure of the legislation. 5 EXECUTIVE SUMMARY 1. Disability discrimination legislation now applies to all aspects and all stages of medical education and training, as well as to the employment of trainees and fully qualified doctors. 2. The Disability Discrimination Act (DDA) 1995 as amended by the Special Educational Needs and Disability Act (SENDA) 2001 in Great Britain and equivalent provisions in Northern Ireland gave disabled students and prospective students rights in higher education, and made it unlawful to put disabled students at a substantial disadvantage and to fail to make reasonable adjustment to policy, procedure and practice. The more recent Disability Equality Duty (DED) marks a move forward from responding to the individual requirements of disabled students and to building a positive culture and embedding institutional change. Northern Ireland is implementing similar rules, though in some cases a little later than Great Britain. 3. Disability discrimination legislation affects every aspect of medical education and training in the widest sense, from first contacts with potential students to qualification and beyond. In broad terms it covers: marketing; student admissions and exclusions; recruitment; frontline services; estates; procurement; health and safety; making reasonable adjustments and reviewing support; social activities; teaching and learning; assessment and exams; competence standards; work placements; staff training; and employment practices. The legislation (Part 3 of the DDA 1995) also covers services to the public, lettings and access to the public, but these are not directly relevant to the core objectives of the project to develop guidance for medical schools, so are not covered in this paper. It should be noted that damages for disability discrimination in some cases are uncapped: if a disabled student were awarded life-long earnings and pension rights because unlawful discrimination had prevented him or her from practising as a doctor the damages could be substantial. 4. The best sources of information are the Codes of Practice and guidance issued by the Great Britain Disability Rights Commission (DRC) (now subsumed in the Commission for Equality and Human Rights, known as the Equality and Human 6 Rights Commission (EHRC)) and the guidance issued by the Equality Commission in Northern Ireland. The Code of Practice and revised Code on post-16 education set out comprehensive guidance on all educational aspects of the relevant law and its practical implementation. The two Statutory Codes of Practice on the Disability Equality Duty (one for England and Wales, the other for Scotland) and the Northern Ireland Equality Commission’s New disability duties on Public Authorities - A Guide for Public Authorities give further guidance to public authorities (including the GMC, medical schools and postgraduate deaneries) on new duties designed to eliminate institutional discrimination and to develop a proactive approach by promoting disability equality in their policies, practices and procedures. The Codes of Practice for Trade and Qualifying Bodies set out the relationship and duties of bodies which regulate professional education and training (including the GMC). The August 2007 guidance Understanding the Disability Discrimination Act - a guide for colleges, universities and adult community learning providers in Great Britain provides clear and concise guidance on all these matters. A revised Code of Practice on Trade Organisations, Qualifications Bodies and General Qualifications Bodies is, pending ministerial and parliamentary approval, available in draft form (with the authority of non-statutory guidance) 5. One crucial issue concerns academic, health/medical or other standards used to determine whether or not a student or potential student has a particular level of competence or ability. The question is the extent to which such standards (called ‘Competence Standards’) are genuine and relevant and may be considered lawful even where they discriminate against disabled people. The Codes of Practice emphasise that although there is no duty to make reasonable adjustments in respect of the application of a competence standard (so long as it is genuine and relevant), such a duty does apply to the process by which competence is assessed. 6. Medical schools need to ensure that the standard of fitness to practise required for graduation itself, and the process by which a person’s fitness to practise is assessed at that stage, comply with the DDA especially to ensure that the standard itself is genuine and relevant and that reasonable adjustments, where required, have been made during the assessment procedure. The separate but equivalent process by which medical schools 7 determine whether a prospective student is fit to register on a course also needs careful review, again to determine the lawfulness of the standard and the assessment process. 7. It can be hard for a disabled potential student to find out about the requirements for admission to medical school, fitness to practise standards and how they are assessed. In particular, it is important that students and potential students (and those who advise them) do not have unjustified fears about the General Medical Council (Fitness to Practise) Rules Order of Council 2004 which do not apply to students and only apply to registered doctors where their fitness to practise is called into question and the GMC commences an investigation. 8. Section 10(4) of the Medical Act 1983 made provision for the GMC to make adjustments for a person with a long-term physical disability during their training while provisionally registered. Since August 2007 this has been widened as a result of the Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006 which replaced Section 10 with a new Section 10A. The GMC Education Committee is now empowered to make ‘arrangements for a person with a disability not to be disadvantaged unfairly by the disability when participating in a programme for provisionally registered doctors’. 9. Shortly before it became part of the Commission on Equality and Human Rights, the Disability Rights Commission completed a statutory formal investigation into professional regulation within nursing, teaching and social work and disabled people’s access to these professions. The legal review and the Interim and Final Reports of that Investigation make it clear that the DRC considered that its findings were also relevant to other health professions, including medicine. The Final Report made a formal recommendation that regulatory bodies repeal health and fitness standards and that regulatory bodies within medicine, dentistry and other non-nursing health professions should ‘review the findings and recommendations of the DRC’s investigation (including the analysis of the health and fitness standards regulatory frameworks) and consider their applicability to these other professions’. We therefore summarise the recommendations relevant to medical education and training. 10. In Section 4 we analyse the relevant law at international and European level and in four comparable common law countries. 8 One point to note is that a disabled doctor who is registered in another European Union Member State has the right to work in the United Kingdom by virtue of the rules on freedom of movement and freedom of establishment. Another is that in New Zealand’s transparent regime, performance assessments are separate from the professional conduct process and from disciplinary tribunal hearings. 9 SECTION 1 OVERVIEW OF THE MAIN PROVISIONS OF THE DISABILITY DISCRIMINATION ACT APPLICABLE TO MEDICAL EDUCATION AND TRAINING 11. The Disability Discrimination Act (DDA) 1995 made disability discrimination in employment unlawful and thus gave rights to disabled medical trainees because of their employment contracts with Trusts and Health Boards and to doctors throughout their careers. (Please note that the Armed Forces are excluded from the scope of the DDA.) The rights of disabled students/trainees were clarified and strengthened by Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (usually called the EU Framework Directive) which made it unlawful from 2006 for employers to discriminate against vocational students on work placements. 1. THE DEFINITION OF ‘DISABILITY’ 12. Under the DDA, a disabled person is someone who has a physical or mental impairment which has a ‘substantial’ and ‘long- term adverse effect’ on his or her ability to carry out ‘normal day- to-day activities’. 13. The definition has been clarified in statutory guidance published primarily to assist adjudicating bodies like courts and tribunals in deciding whether a person is a disabled person. The current Guidance on matters to be taken into account in determining questions relating to the definition of disability came into force from 1 May 2006. It replaced the original guidance, published in 1996 which remains relevant for cases relating to discrimination before 1 May 2006. This guidance applies to England, Wales and Scotland. Similar, but separate, guidance applies to Northern Ireland. 14. The guidance restates the Act’s requirement that to have rights under the Act a person must have an impairment that is either physical or mental. Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that the impairment has on that person’s ability to carry out 10